Jamison Albert Fisher v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-0909
Filed October 2, 2024

JAMISON ALBERT FISHER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.

An applicant for postconviction relief appeals the denial of his claim.

AFFIRMED.

John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

Brenna Bird, Attorney General, and Richard J. Bennett, Assistant Attorney

General, for appellee State.

Considered by Ahlers, P.J., Badding, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024).
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GAMBLE, Senior Judge.

Jamison Fisher appeals the dismissal of his application for postconviction

relief. Finding Fisher did not establish prejudice in his ineffective-assistance-of-

counsel claim because substantial evidence supports the challenged element of

theft, we affirm.

I. Background Facts & Proceedings.

Fisher was convicted of first-degree theft of a truck and trailer. In his last

amended application for postconviction relief, Fisher accepted the facts as

summarized by this court on his direct appeal:

On September 8, 2018, Bradley Maxwell reported the theft of
his 1993 GMC Sierra truck and an attached trailer. He had parked it
in the parking lot of his business, Maxwell Transmission. The
attached trailer was used to transport race cars. It contained various
tools. Bradley testified he may have forgotten the keys in the truck
but no one had permission to take his truck and trailer.
Bradley’s friend spotted the truck, and police responded.
Fisher and Emily Hintze were found with the truck. But the trailer
was not there. Fisher and Hintze were arrested. They were released
the following day.
Bradley’s son, Derek Maxwell, remembered Hintze from high
school. He confronted her about the missing trailer over Facebook.
He received the following response from Hintze’s Facebook account:
“This is Jamie Fisher . . . . Your trailer is on the island parked it on
an empty lot it’s not a big place you can find it. The girl had nothing
to do with it the [drugs] she had on her was mine.” The trailer was
then found.

State v. Fisher, No. 19-0337, 2020 WL 1548498, at *1 (Iowa Ct. App. Apr. 1, 2020).

The truck had a sticker on the side window that said, “Maxwell Transmission,” and

the trailer had the Maxwells’ race number on the front. Fisher had done roof work

on the Maxwell Transmission building the year before. The truck and trailer were

taken in the town of Mt. Joy in Scott County; Fisher and Hintze were found with the
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truck in Bettendorf; the trailer was located in the woods on Campbell’s Island which

is only accessible from the Illinois side of the Mississippi River.

The jury was presented with “two theories of theft—theft by taking and theft

by possession of stolen property.” Id. at *2. The general verdict form allowed the

jury to find Fisher guilty under either theory. In his direct appeal, Fisher challenged

his conviction under the theory of theft by taking, and this court affirmed, finding

“sufficient circumstantial evidence for the jury to connect the dots and conclude

Fisher took the truck and trailer.” Id. Although Fisher made a general claim the

State failed to prove the intent element of theft by taking, the claim had no “support,

analysis, or further argument on the intent element,” and the court found the issue

not sufficiently argued for appellate review. Id. at *2 n.3. Fisher filed an application

for postconviction relief in January 2021.

Fisher’s initial application and subsequent amended and recast applications

alleged ineffective-assistance-of-counsel claims and actual innocence. Among the

ineffective-assistance claims, he asserted appellate counsel on direct appeal failed

to properly support the argument challenging his intent under the taking theory

because “whoever took the property did not have the intent to permanently deprive

the owner.” The district court found Fisher failed to prove each claim by a

preponderance of evidence. On appeal, Fisher only urges appellate counsel was

ineffective for failing to argue he did not have the intent to deprive the owner of

possession or control of the property. We discuss additional facts relevant to his

claim in our analysis.
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II. Scope of Review.

Postconviction-relief applications alleging ineffective assistance of counsel

raise a constitutional claim, which we review de novo. Krogmann v. State, 914

N.W.2d 293, 306 (Iowa 2018). We give weight to the district court’s findings

concerning witness credibility, but we are not bound by them. Sothman v. State,

967 N.W.2d 512, 522 (Iowa 2021). In order to establish ineffective assistance, the

claimant must establish “counsel’s performance fell ‘below the standard demanded

of a reasonably competent attorney’” and that they were prejudiced by the deficient

performance. Krogmann, 914 N.W.2d at 306–07 (citation omitted). Here, Fisher

challenges “the level of professional competency on the part of [his] original

appellate counsel.” See Osborn v. State, 573 N.W.2d 917, 922 (Iowa 1998). We

assume without deciding that appellate counsel breached an essential duty in

failing to argue sufficiency of evidence to support the “intent to deprive” element of

theft by taking. However, we choose to focus on the prejudice prong of Fisher’s

ineffective-assistance claim.

To prevail, Fisher must show “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is one that is sufficient to undermine confidence

in the outcome.” Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008) (cleaned up)

(citations omitted).

Thus, to establish prejudice, Fisher needs to show he would have prevailed

on appeal on his challenge to the sufficiency of the evidence regarding the intent

element. This sufficiency claim would have been reviewed for correction of errors

at law on direct appeal. See State v. Copenhaver, 844 N.W.2d 442, 449
5

(Iowa 2014). This standard means we would have “consider[ed] all the evidence

presented at trial and view[ed] the evidence in the light most favorable to the

[S]tate.” Id. “The jury’s verdict is binding if supported by substantial evidence.”

State v. Lee, 6 N.W.3d 703, 706 (Iowa 2024). This evidence includes “all legitimate

inferences and presumptions that may fairly and reasonably be deduced from the

record evidence.” Id. at 706–07 (cleaned up) (citation omitted).

III. Analysis.

Fisher challenges the denial of his claim against appellate counsel, arguing

the court’s conclusion was based on a credibility finding with no additional legal

analysis.

The district court’s rejection of this claim was brief:

The testimony from appellate counsel . . . was very compelling on
this issue and the Court finds her testimony very credible. The Court
of Appeals affirmed Mr. Fisher’s conviction. And upon examination,
[appellate counsel] testified that there was sufficient evidence of
taking. In the alternative, [counsel] testified it was harmless error not
to argue there was insufficient evidence of “intent to deprive,” as
there was sufficient evidence of Mr. Fisher being in possession of
stolen property.

While we give weight to the district court’s credibility finding concerning

counsel’s testimony that there was sufficient evidence of theft by possession of

stolen property, counsel did not specifically testify it was “harmless error” to not

argue about the sufficiency of the evidence of intent under the theft by taking

alternative. Rather, counsel observed sufficient evidence the property was stolen

for the possession alternative “would undercut any argument there was no intent

to permanently deprive” under the taking alternative. The district court’s framing

does not account for general verdict law at the time of Fisher’s conviction. At the
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time of Fisher’s offense and trial (though not the appeal), Iowa courts reversed for

new trial “when the jury returned a general verdict and not all the theories were

supported by substantial evidence.” State v. Tyler, 873 N.W.2d 741, 754

(Iowa 2016), superseded by statute, Iowa Code § 814.28 (Supp. 2019)

(proscribing the appellate court’s reversal of a general verdict as long as one or

more theory presented “is sufficient to sustain the verdict”).1 It is unclear whether

Fisher’s direct appeal decided in 2020 would have been reversible under the

general verdict caselaw if we determined there was not sufficient evidence to

support the “intent to deprive” element of the theft by taking alternative, given the

2019 statute.2 Due to this uncertainty, we cannot say the error would have been

harmless.

In this appeal, neither party addressed the applicability of section 814.28 or

previous general verdict case law, and we decline to speculate and decide

arguments counsel did not make. See Hyler v. Garner, 548 N.W.2d 864, 876

(Iowa 1996) (“[W]e will not speculate on the arguments Autorama might have

made and then search for legal authority and comb the record for facts to support

1 On direct appeal, Fisher’s counsel had asked this court to find the new statute

did not apply to Fisher’s right to a new trial, but we declined to reach the issue.
See Fisher, 2020 WL 1548498, at *2 n.4.
2 In 2020, this court found section 814.28 “lacks language clearly indicating a

legislative intent for retroactivity” and declined to apply it when conviction predated
the statute. State v. Warren, No. 19-0267, 2020 WL 2488183, at *3 (Iowa Ct. App.
May 13, 2020), aff’d in part, rev’d in part, 955 N.W.2d 848 (Iowa 2021) (finding the
theory of guilt Warren was convicted under was discernible in the bench trial ruling
and not addressing Iowa Code section 814.28); see also State v. Foster,
No. 19-0918, 2020 WL 4498847, at *7 n.9 (Iowa Ct. App. Aug. 5, 2020). The
supreme court has not taken up challenges to the Code section to date, instead
examining all theories presented for sufficient evidence. See State v. West
Vangen, 975 N.W.2d 344, 347 (Iowa 2022).
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such arguments.”); see also State v. Lange, 831 N.W.2d 844, 847 (Iowa Ct.

App. 2013) (“[W]e refuse to assume a partisan role and undertake a party's

research and advocacy.”). Lacking any briefing on the issue, and following the

supreme court’s example, we will not address whether section 814.28 would

control. See West Vangen, 975 N.W.2d at 347; see also Fisher, 2020

WL 1548498, at *2 n.4 (declining to address the applicability of section 814.28 by

deciding the merits).

So we turn to the merits of Fisher’s claim, that the State failed to prove his

intent to deprive under the theory of theft by taking. The elements of theft by taking

required the State to prove beyond a reasonable doubt:

1. On or about the 8th day of September, 2018, in Scott
County, Iowa, the defendant took possession or control of property
belonging to Bradley Maxwell.
2. The defendant did so with the intent to deprive Bradley
Maxwell of the property.
3. The property, at the time of the taking, belonged to Bradley
Maxwell.

In Fisher’s view, the fact that the truck was recovered undamaged—with even the

window sticker intact—combined with the fact that after Fisher’s arrest and release,

the owner was directed to the location of the trailer with all of its contents still

present indicates “whoever took the property did not have the intent to permanently

deprive the owner.” And, at the postconviction trial, Fisher’s appellate counsel

admitted that, in retrospect, there were arguments she could have made about “no

intent to permanently deprive the owner of either the truck or trailer.” But she

limited that admission, stating, “if there was sufficient evidence that the property

was stolen, that that would undercut any argument that there was no intent to

permanently deprive.”
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Fisher argues the facts fall in a “grey area” allowing appellate counsel to

argue they do not indicate an intent to deprive under State v. Berger, 438

N.W.2d 29 (Iowa Ct. App. 1989). “[T]he intent to deprive used in the theft statute

714.1(1) . . . requires more than a temporary dispossessing of another’s property,

although a deprivation is not necessarily a permanent thing.” Berger, 438 N.W.2d

at 31. The Berger court adopted as a definition for intent to deprive a then-uniform

jury instruction:

Intent to “deprive the other” of the property means to permanently
withhold, or cause it to be so withheld for an extended period of time,
or under such circumstances, that its benefit or value is lost; or, the
property is disposed of in such a manner or under such
circumstances, as to render it unlikely that the owner will recover the
property.

Id. (citation omitted). But in a later case, our supreme court revisited the definition

and held that under the theft statute, the intent must be “to permanently deprive

the owner of his property.” State v. Schminkey, 597 N.W.2d 785, 789 (Iowa 1999).

The court went on to observe:

Because proof that the defendant acted with the specific purpose of
depriving the owner of his property requires a determination of what
the defendant was thinking when an act was done, it is seldom
capable of being established with direct evidence. Therefore, the
facts and circumstances surrounding the act, as well as any
reasonable inferences to be drawn from those facts and
circumstances, may be relied upon to ascertain the defendant’s
intent.

Id. (internal citation omitted). Therefore, we believe the State had the burden to

prove Fisher had the intent to permanently deprive Maxwell of the truck and trailer.

The issue is whether the appellate court would have found there was insufficient

evidence to support that proposition had Fisher’s counsel argued the point on

direct appeal.
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Fisher testified at his postconviction trial that the trailer was not hidden—it

“was parked right on the road. Literally three steps from the front of it.” And that

he knew where it was located because Hintze drove him by it trying to sell both the

truck and trailer to him. But Fisher did not testify at his underlying trial. And we

have to evaluate the claim based on evidence that was presented at trial.

The truck and trailer were taken from Maxwell’s parking lot in Mt. Joy

between 10:30 p.m. Friday night and 10:00 a.m. Saturday morning. The truck and

trailer were driven through Bettendorf, over the Mississippi River, and then to

Campbell’s Island—a small island located off the highway on the Illinois side of the

river “littered with houses”—where the trailer was detached and left on an out-of-

the way residential lot. Both Bradley and Derek Maxwell testified it was difficult to

detach the trailer from the truck. Fisher and Hintze drove around the area, putting

around 100 miles on the truck before they were arrested, and the truck was

recovered on Saturday evening in Bettendorf.

The trailer was found after Derek Maxwell sent Facebook messages to

Hintze and received a vague response “on the island” as the trailer’s location early

Monday morning. Derek determined the message meant Campbell’s Island, so he

drove around until he discovered the trailer on the far side interior of the island and

called law enforcement. He testified there were “[a] lot of places to hide a trailer”

on the island, the trailer looked like it was intended to be hidden, and he

“[w]onder[ed] how it got backed into that spot.” The deputy responding to Derek’s

call described the trailer’s location as “five to ten foot off the road but clearly visible”

from a side street on the island. He described the location as a plotted address
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with no home and as “a clearing but it looks overgrown,” and that “they definitely

tried to put it off the road, but it wasn’t hidden well.”

Hintze testified when Fisher picked her up in the truck, it did not have the

trailer attached. She said she believed the truck was Fisher’s, and she drove the

truck because she had a license and Fisher did not. And she testified she saw

Fisher send the Facebook message about the trailer to Derek, but that she did not

know what trailer he was talking about or where it was. When asked if she had

any experience in driving with forty-foot trailers or knew how to do so, she

answered “No.”

We think a jury could reasonably infer from the evidence presented at trial

that Fisher had disposed of the trailer “so that it [wa]s unlikely the owner will

recover it.” See Schminkey, 597 N.W.2d at 789 n.1 (quoting Iowa Criminal Jury

Instructions No. 1400.2 (1988)) (“[T]he portion of this instruction—‘the property is

disposed of so that it is unlikely the owner will recover it’—more accurately

describes a circumstance from which an intent to permanently deprive may be

inferred, rather than describing the intent itself.”). Viewing the evidence in the light

most favorable to the State—including Fisher’s taking the trailer across state lines,

hiding the trailer on an abandoned lot on a side street of a small island, and not

sharing the location with the owner until after the owner’s son had contacted

Fisher’s girlfriend with accusatory Facebook messages—substantial evidence

supports the jury’s verdict.

Because Fisher’s claim would have failed on direct appeal, he cannot show

that, but for appellate counsel’s failure to argue the issue on appeal, the outcome

of his direct appeal probably would have been different. See Millam, 745 N.W.2d
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at 722. Therefore, he has failed to establish the prejudice element of his

ineffective-assistance-of-counsel claim.

To the extent Fisher’s brief raises additional arguments, we find them to be

either unpreserved or without merit and affirm without further opinion.

We affirm the district court’s denial of his application for postconviction

relief.

AFFIRMED.